On November 29 the U.S. Supreme Court heard arguments in the case of Commonwealth of Massachusetts et al. v. Environmental Protection Agency, on the issue of EPA’s refusal to regulate greenhouse gas emissions from new vehicles.  The case presented the questions of (1) whether EPA has authority to regulate air pollutants associated with climate change under the Clean Air Act, and (2) whether EPA may decline to issue emission standards for motor vehicles based on policy considerations. Much of the case revolves around “standing” and other legal issues, but as documents in the case, the hearing , and media coverage make clear, the case raises questions about how to translate climate science into decisionmaking.

Global Warming Goes to Court, New York Times editorial, November 28

…Beneath the statutory and standing questions, this is a case about how seriously the government takes global warming. The E.P.A.‘s decision was based in part on its poorly reasoned conclusion that there was too much “scientific uncertainty” about global warming to worry about it. The government’s claim that the states lack standing also scoffs at global warming, by failing to acknowledge that the states have a strong interest in protecting their land and citizens against coastal flooding and the other kinds of damage that are being projected.

In a friend-of-the-court brief, climate scientists from the NASA Goddard Institute for Space Studies, Stanford University and other respected institutions warn that “the scientific evidence of the risks, long time lags and irreversibility of climate change argue persuasively for prompt regulatory action.” The Supreme Court can strike an important blow in defense of the planet simply by ruling that the E.P.A. must start following the law.

Court Hears Global Warming Case
Justices to decide Challenge on Greenhouse Gas Emissions
by Robert Barnes
Washington Post, November 30

Massachusetts Assistant Attorney General James R. Milkey told the court that 200 miles of the state’s coastline are threatened by rising seas, a result of global warming.

Milkey faced skeptical questioning from Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., the court’s newest members, but the most sustained—and entertaining—interrogation came from Scalia.

At one point, he acknowledged the role of carbon dioxide as a pollutant in the air but wondered about it being a pollutant in the “stratosphere.”

“Respectfully, Your Honor, it is not the stratosphere. It’s the troposphere,” Milkey said.

“Troposphere, whatever. I told you before I’m not a scientist,” Scalia said to laughter. “That’s why I don’t want to have to deal with global warming, to tell you the truth.”

Ha ha.

Justices’ First Brush With Global Warming
by Linda Greenhouse (appropriate name)
New York Times, November 30

By the end of the argument there appeared a strong likelihood that the court would divide 5 to 4 on the standing question, with Justice Anthony M. Kennedy holding the deciding vote. His relatively few comments were ambiguous. Early in the argument he challenged the assertion by Mr. Milkey, the states lawyer, that the case “turns on ordinary principles of statutory interpretation and administrative law” and that there was no need for the court “to pass judgment on the science of climate change.”

That was “reassuring,” Justice Kennedy said. But, he added, “Dont we have to do that in order to decide the standing argument, because there’s no injury if theres not global warming?”

A Hot Debate on Climate Change
by Eli Kintisch
ScienceNOW Daily News, 29 November 2006

The different views among the nine justices on the U.S. Supreme Court about climate change were clearly visible today as the high court tackled the simmering controversy over government regulation of greenhouse gas emissions. Climate research has played a central role in the case, which addresses the degree of scientific uncertainty on global warming and the impacts of rising temperatures….

The state of the science was also vigorously debated. Deputy Solicitor General Gregory Garre, arguing for EPA, said the “substantial scientific uncertainty” gave the agency the latitude not to act. (A victory by the states wouldn’t compel EPA to regulate carbon dioxide. Still, the agency would be forced to reexamine the issue, presumably with new instructions on what to consider.) But Justice Paul Stevens wasn’t buying Garre’s argument. Stevens borrowed words from a brief filed by scientists on behalf of the states (Science, 8 September, p. 1375), saying that EPA took “selective quotations” from a 2001 National Research Council report on climate change to distort its conclusion that scientists are “virtually certain” that emissions from human activities are worsening the problem.


The International Center for Technology Assessment, which filed the original petition to EPA in 1999 that got this case started, has posted a substantial set of documents in the Massachusetts et al. v. EPA case on the ICTA Web site.

In particular, we note the following:

of Massachusetts, et al v. EPA, 11/29/2006

Massachusetts, et al v. EPA—Petitioners’ Supreme Court Final Reply Brief, 11/15/2006

Massachusetts, et al. v. EPA—Respondent EPA’s Supreme Court Brief, 10/24/2006

Massachusetts, et al v. EPA—Petitioners’ Supreme Court Brief, 08/31/2006
Opening Supreme Court Plaintiff’s brief challenging the EPA’s denial to regulate the emission of global warming air pollutants from motor vehicles under section 202 of the Clean Air Act.

Amicus Briefs Supporting Petitioners in Massachusetts, et al v. EPA
This page links to a number of the amicus briefs. See especially:
Climate Scientists Brief
Wildlife Conservation Interests Brief
Ocean and Coastal Conservation Interests Brief

United States Court of Appeals for the D.C. Circuit Decision in Massachusetts, et al. v. EPA, 415 F.3d 50 (D.C. Cir. 2005), 07/15/2005
The United States Court of Appeals for the D.C. Circuit issues a split decision.  Judge Randolph authors the Court’s lead opinion as well as its judgment.  Judge Randolph votes to uphold the EPA’s denial of the Global Warming Legal Petition based upon the agency’s “policy considerations.”  Judge Sentelle dissents because he views the Court lacking jurisdiction, but joins Judge Randolph in judgment.  Justice Tatel wrote a substantial and noteworthy dissent and would have found in favor of the Petitioners and against EPA.